Will LLLTs Really Improve Access to Justice?

Despite the Washington State Bar Association’s Board of Governors voting against it numerous times, in 2012 the Washington Supreme Court adopted APR 28 the Limited Practice Rule for Limited License Legal Technicians (LLLT).[1] This rule was submitted to the Court by the Practice of Law Board, the board that investigates unauthorized practice of law (UPL) complaints, which was established by the Court in 2001.[2] The Court then commissioned the Civil Legal Needs Study in 2003, which concluded that there was limited access to justice for those with little or no financial means. The Practice of Law Board drafted the initial LLLT rule with Supreme Court directive and sought input in 2005. The Board submitted its proposed rule to the Court in 2008, which was eventually adopted by Court order in 2012. APR 28 allows non-lawyers to “engage in discrete activities that currently fall within the definition of the ‘practice of law.’”[3] The Court’s stated purpose for creating the LLLT program was to increase access to justice.[4] The first LLLTs are expected to be licensed in late spring 2015.

I have written previous posts about my skepticism regarding this program, particularly with respect to the unsupported claims by its proponents that the program will lower legal costs and increase access to justice.[5] While there is evidence to support the claim that only legal aid and/or pro bono will actually increase access to justice, there is no evidence to support that programs like the LLLT program will. There is nothing in the LLLT rule that requires them to serve the poor or charge reduced rates. Additionally, the LLLT program is an act of regulatory liberalization. Australia and the U.K. are both jurisdictions that have reformed and/or liberalized legal services, including the authorization of alternative business structures (ABS). According to recent studies out of Harvard Law School and Canada, there is no evidence that the regulatory reforms in either country have increased access to justice or lowered legal costs.

The Court’s reasoning for creating the LLLT program is based on the Civil Legal Needs Study, which led to two conclusions. First, attorney fees are too high and this limits access to justice, because people would otherwise see an attorney for their legal needs but for the cost. Second, the LLLT program would lower costs and would thereby create greater access to justice. However, the Court’s own study does not support those conclusions, nor does the study indicate that cost is the main impediment to accessing justice. The study, which oddly does not define access to justice, actually revealed that low income people do not obtain legal services primarily because they don’t know they even have a legal problem. Even if a person does know s/he has a legal problem, s/he does not know where to go for help and/or does not have the desire to fight a legal battle. All of these obstructions were cited as larger access to justice impediments than cost.

Ironically, the LLLT program has only been approved for family law matters, despite the fact the study found that “attorney assistance is most successfully secured in family-related matters.” Therefore, the program supposedly created to increase access to justice is solely applied to the area of law with the most access to justice. According to the study, housing issues were the largest category in which low income people faced legal problems. The following two graphs show the rate at which low income people are able to obtain an attorney by area of law (Fig. 3) and the percentage of legal issues for low income people by area of law (Fig. 10), respectively. As you can see, 30% of family law cases involve an attorney, whereas only 10% for folks facing housing problems. Housing is also the largest legal issue facing the poor (17%).

The most interesting finding of the study was that “nearly half of all low income people with a legal problem did not seek legal assistance because they did not know that there were laws to protect them or that relief could be obtained from the justice system.” So, even if we define access to justice so narrowly as to only include ability to hire an attorney, the cost of an attorney isn’t even a factor in the majority of cases. In the other half, people with a legal problem “did not know where to turn, were fearful, believed they could not afford legal help, or had language barriers.” Even in the minority of cases in which cost is a factor, it is the belief about the cost of attorneys, not the actual cost that is a factor. In reality many attorneys work for as low as $50 an hour or offer alternative billing options, volunteer in pro bono roles like the King County Bar Association’s Housing Justice Project, or take Moderate Means cases.

The study does not suggest that we lack enough lawyers to serve legal needs. In fact, the US has the most lawyers per capita in the world and, according to the US Bureau of Labor Statistics, there are twice as many new lawyers as there are jobs. If cost of legal services is a minor factor in access to justice and the number of available lawyers isn’t a factor at all, what purpose does the LLLT program serve? Putting the 50% of law grads that can’t find a job to work in legal aid, low bono, or pro bono roles would have been a better use of the Court’s time and resources.

Additionally, “even though more than 40 percent of low-income households have access to and the capability to use computers and the internet, only 19 percent of households know of a website where they can get information or help with civil legal problems.” Public education and outreach regarding the identification of legal issues and the available legal resources that can in fact be accessed should be the predominant priority of the bar and the Court in promoting access to justice.

For 12 years the Court and other proponents spent time and money on the LLLT program that doesn’t solve the problem it set out to rectify. I am all for increasing access to justice as a noble cause. What I’m not for is slapping the phrase “access to justice” on a myriad of agendas that likely have little or no bearing on access to justice, but rather have more to do with PR and salesmanship when pushing agendas forward. Decisions by the bar or the Court should be based on evidence, not gut or whim. Ill-conceived remedies for the access to justice problem will create more problems than they solve. “The data demonstrates that getting help from an attorney dramatically improves satisfaction with the outcome of a legal problem, as well as feelings about the justice system.” It is naïve to think that quality legal services, beyond simple forms for simple matters, are ever going to be truly cheap or free for anybody, unless a robust legal aid entitlement program becomes available. Merely creating a new for-profit legal service practitioner classification is not going to fix access to justice, which for many apparently simply means cheap or free.

[1] In the Matter of the Adoption of New APR 28-Limited Practice Rule for Limited License Legal Technicians, Order No. 25700-A-1005 (Wash. June 14, 2012).

[5] I was opposed to the LLLT program because I do not believe it provides the education and training necessary to prepare LLLTs to responsibly provide legal services without the supervision of an experienced lawyer. Had the program required lawyer supervision, I would have been more supportive.

One Comment

Thank you for the article and clearly articulating my main sources of concern. Underserved immigrant communities will continue to be underserved and this new Legal Practitioner title only muddies their understanding of who is fit to provide legal services. In my opinion, a better use of time and effort would have been the regulation of tax preparers who in most immigrant communities engage in the unauthorized practice of law.